Planning covenants – amendment

At the January 2016 States meeting I laid an amendment against a policy letter which was supposed to be about land use classes and tidying up the use class ordinance. However, within that policy letter was a proposition to rescind a resolution of 2007 that restricted the use of planning covenants. There are real concerns over their use and it was inappropriate to have placed this proposition in that report. My amendment looked to avoid that and only to consider rescinding once the local housing market review was published. In the end the amendment was drawn 22:22, but members went on to throw out the proposition, which was just the result I wanted. By laying the amendment it highlighted the issue and served its purpose by ensuring the status quo was maintained until the States has decided the policy on planning covenants.


This is a very simple amendment and merely retains the current situation. Indeed the situation we have been in for the last 5 years. Having considered the implications, I consider the current proposition to rescind the resolution of 2007 to be dangerous and that could create unintended consequences.

I should make it clear that I support the rest of this policy letter . The bit that relates to the title: ‘A review of the Land Planning and Development (use classes) Ordinance 2007.’

Proposition 2 is nothing to do with amending that Ordinance. It relates to a resolution of the States in 2007 arising from a policy letter on Planning Covenants.

Given the significant concerns expressed at the planning enquiry over the use of planning covenants and the fact that it is yet to be decided by the States, why choose now to rescind a resolution? I have spoken to a senior planning officer in the Department and Deputy Luxon and myself have also been given extensive background information from the law officers before deciding to lay this amendment. I thank them for their time. But nothing we have heard answers why the present situation, which has existed for some time, needs to change now.


The argument in support of proposition 2 seems to be, well, since 2011 we have the SLUP  which gives a strategic direction and everything is going to change with the new Island Development Plan, so let’s rescind the resolution of 2007 as it could cause confusion.


However, this is jumping the gun and will only create more confusion and I will explain why.

In 2007, the States debated a policy letter on planning covenants and in that letter it stated that, ‘It is important that any such system is introduced with caution in order to avoid any unintended consequences and the pitfalls experienced elsewhere and to ensure it is tailored to local circumstances. It went on to say ‘the wide application of planning covenants would place a heavy demand on staff resources to establish associated policy documents, guidance notes and appeal procedures and thereafter to operate and update complex systems of quotas and appraisals and to deal with appeals.

It was because of these concerns that the then States decided that planning covenants should be restricted to Housing Target Areas.

Now, 4 years later the SLUP comes along and it states that ‘Appropriate levels of provision of social and/or specialised housing on large general market site ‘may be required’ through the use of planning condition or covenant and established through a specified mechanism.  Now we have the Land Planning and Development (Planning Convenants) Ordinance 2011, which states that planning covenants can be used for social and affordable housing, but there is nothing yet in place setting out any other mechanisms.

As it says in the SLUP ‘a mechanism for assessing the appropriate circumstances for

triggering the inclusion of social and/or specialised housing will be clearly set out

within the Development Plan.’ Yes, the draft IDP set out that planning covenant should apply to all developments of 5 units or above, but it is just that, draft.


We are awaiting the Planning Inspector’s report and the Plan to come to the States. Whilst SLUP may be supportive of not having HTAs, we await the final decision of the States and the new Island Development Plan before knowing what the new world is going to be.

So, the effect of proposition 2 could be to create just more confusion.



The SLUP also states that, rather than setting prescriptive target levels for social and/or specialised housing, it will instead be for the Housing Department in conjunction with the Environment Department to determine and inform the Development Plan through the analysis of existing relevant data sources. ‘


I don’t think I need to remind members that in September last year we had the Housing present a policy letter setting targets which it wished to place on such housing, in contravention of the SLUP.  A proposal that was rejected in favour of the commissioning of an objective Housing Needs Survey that will inform the departments as to need and the States agreed at that same meeting to an independent broad-based review of the local housing market, which should also inform the benefits or otherwise of planning covenants.



We haven’t got those now and in their place we have a vacuum so if proposition 2 is passed planning covenants could be imposed unnecessarily. This won’t mean affordable homes won’t be built of course given the number of recent applications by the GHA and of course planning covenants are not needed for States owned land.


The SLUP is 5 years old and based on a 10 year old report whose assumptions have since been discredited by experiences elsewhere so how can it be assumed, which the proposition does, that the draft IDP will remain unchanged in respect of planning covenants?

So, why rescind the resolution, before the States has agreed how it wishes planning covenants to operate in the future or has had proper review into the effect of planning covenants in the current market?

The construction industry is in a fragile state at the moment. There are real concerns about how planning covenants may be extended in the future. Proposition 2 has already created unease, especially as it has been seen to be have slipped in under the radar without consultation. It is not essential that we support it now and it should not be supported now until we have the evidence to determine the extent to which planning covenants should be used in the future.

To avoid unintended consequences and to avoid confusion, I request members to support this amendment.

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